Sommers v. City of Marshfield

62 N.W. 937, 90 Wis. 59, 1895 Wisc. LEXIS 237

Opinion

Cassoday, J.

The complaint alleges, in effect, the notice required by sec. 1339, R. S., and no question is made as to that notice. The charter provides, in effect, that no action shall be maintained by any person against the defendant city upon any “ claim or demand until such person first shall have presented his claim or demand to the common council for allowance, and the same shall have been disallowed in whole or in part,” and provides that a failure to act upon such claim or demand shall be deemed a disallowance. Laws of 1891, ch. 160, subch. 5, sec. 4. It is contended that the complaint is fatally defective because of its failure to allege such presentation and disallowance. But this court has repeatedly held that the words “ claim or demand,” as used in the charter, do not include a cause of action for personal injury by reason of a defective street or sidewalk. Kelley v. Madison, 43 Wis. 638; Bradley v. Eau Claire, 56 Wis. 168; Hill v. Fond du Lac, 56 Wis. 242; Jung v. Stevens Point, 74 Wis. 547; Vogel v. Antigo, 81 Wis. 642. “ Claim or demand,” as thus used, include only such as arise upon contract. Ibid.

The charter further provides that the common council of the city may prescribe the material, the manner, and the time for the construction of sidewalks by the owner or occupant of the adjoining lot or land; and that if such owner or occupant neglects or refuses to so construct the same then the city may do so at the expense of such lot or land. Laws of 1891, ch. 160, subch. 12, sec. 1. But these provisions of the charter do not make such owner or occupant primarily liable for injury happening by reason of a defect of such sidewalk. Cooper v. Waterloo, 88 Wis. 433. Nor does ch. 471, Laws of 1889 (sec. 1339b, S. & B. Ann. Stats.), make such owner or occupant primarily liable. Ibid. It is still more obvious that the provisions of the charter (sec. 2, subch. 12, ch. 160, Laws of 1891) making it the duty of such owner or occupant to keep all sidewalks around the same free from snow, ice, rubbish, boxes, barrels, or other obstructions interfering with persons traveling thereon, and imposing a penalty for failure to perform such duty, do not make such lot owner or occupant primarily liable for injury happening by reason of sucb defects. It follows that neither the owner nor occupant of the adjoining lot was a necessary or even a-proper party.

By the Court.— The order of the circuit court is affirmed.